BOARD DATE:	 3 August 2010 

		DOCKET NUMBER:  AR20090019819 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to reflect a 20-year retirement.

2.  The applicant states he was wrongly accused of fraudulent entry and discharged after 21 years of service without a retirement.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 April 1986 and a letter of support, dated 11 July 1986.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he was inducted into the Army of the United States on 10 December 1965.  His DD Form 214 shows he was honorably released from active duty on 8 November 1967.  He was credited with 1 year,
10 months, and 29 days of active Federal service.

3.  The applicant's DD Form 215 (Correction to DD Form 214), dated 11 April 1968, shows his DD Form 214 for the period ending 8 November 1967, was corrected to show his total active Federal service as 1 year, 10 months, and
25 days.  This correction accounts for 4 days the applicant lost under Title 10, U.S. Code, section 972 from 16 November 1966 to 19 November 1966.

4.  The applicant's records contain the following DD Forms 214 with his total active Federal service:

* 10 December 1965 to 8 November 1967; 1 year, 10 months, and 25 days
* 26 April 1968 to 8 May 1969; 1 year and 12 days
*  9 May 1969 to 12 January 1975; 5 years, 8 months, and 4 days
* 13 January 1975 to 10 January 1978; 2 years, 11 months, and 28 days
* 11 January 1978 to 4 April 1986; 8 years, 2 months, and 24 days

5.  On 27 April 1982, the applicant received a Department of the Army (DA) imposed Bar to Reenlistment under the Qualitative Management Program (QMP).  DA cited four Enlisted Evaluation Reports and nine Article 15's as the basis for his bar to reenlistment.  On 17 June 1982, the applicant signed the DA Form 4941-R (Statement of Option) indicating that he had been counseled and understood the options open to him as a result of the DA bar to reenlistment.  He initialed block 1, indicating he would submit an appeal to the bar to reenlistment; however, no appeal was ever initiated.  His expiration term of service was listed as 28 September 1985.

6.  On 18 June 1985, the applicant extended his current enlistment for an additional 8 months and 3 days for the purpose of meeting sufficient service for retirement.

7.  On 4 November 1985, the applicant was notified of the commander's intent to initiate separation action in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 7, Section V, fraudulent entry.  The commander cited the applicant's concealment of a DA imposed bar to reenlistment which enabled him to extend his enlistment by 8 months and 3 days on 18 June 1985 as the basis for the separation action.  After consulting with counsel, the applicant requested his case be heard by an administrative separation board.

8.  On 22 January 1986, the applicant appeared before an administrative separation board with his counsel.  The board reviewed the evidence, interviewed witnesses, conducted an examination of the applicant, and unanimously determined that the applicant was undesirable for further retention in the military service because of fraudulent entry.  The board recommended the applicant's discharge from the service because of fraudulent entry with issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The board noted that since the bar was placed on the applicant on 27 April 1982, he had received four additional Article 15's:

* 21 September 1982, for failing to obey a lawful order from a commissioned officer; reduction to the grade of E-5 and forfeiture of $428.00 pay per month for 2 months
* 8 September 1983, for dereliction of duty (two specifications); reduction to the grade of E-5
* 1 September 1985, for entering the vicinity of the field training site in civilian attire and attempting to gain access to the female sleeping area; forfeiture of $50.00 for two months and a letter of reprimand
* 20 November 1985, for wrongfully initiating contact and attempting personal socialization with a female Soldier; reduction to the grade of E-4 (suspended for 6 months) and forfeiture of $250.00 pay per month for
2 months

9.  On 27 February 1986, the commanding general (CG) requested the Commander, Military Personnel Center (MILPERCEN), Alexandria, VA, disapprove the recommendation of the administrative separation board to issue an other than honorable conditions  discharge and issue a general discharge instead.  The commander stated the evidence indicated that the applicant acknowledged he was barred from reenlistment in 1982 under the DA QMP.  He hand carried his records from Germany to Fort Jackson, SC.  When the applicant arrived to his new station, his records did not indicate a DA imposed bar to reenlistment and, as such, the applicant was allowed to extend his term of service on 13 June 1985 for a period of 8 months and 3 days.  Subsequently, a MILPERCEN computer listing was furnished to the local personnel office which reflected the applicant's barred status and separation action was initiated.

10.  On 27 March 1986, MILPERCEN, on behalf of Headquarters, Department of the Army (HQDA), approved the request to discharge the applicant under the provisions of Army Regulation 635-200, chapter 7, for fraudulent entry, with the issuance of a General Discharge Certificate.

11.  The applicant's DD Form 214 for the period ending 4 April 1986 shows he 
was discharged under honorable conditions.  The separation authority was listed as Army Regulation 635-200, paragraph 7-17b(1), fraudulent entry. 

12.  In a letter of support, dated 11 July 1986, the Retention Noncommissioned Officer (NCO), Mannheim, Germany, stated he counseled the applicant in October 1984 regarding an extension of his enlistment.  He offered that the applicant stated he had a DA bar to reenlistment in effect.  However, after checking the applicant's 201 file and requesting information from the Retain Control Branch, he found no record of the bar.  The Retention NCO stated that he could have extended the applicant, but he would have remained in Europe until his retirement date.  He opined that errors existed in the applicant's military records and the Soldier should not have to suffer those errors or the lack of benefits that 19 plus years of service should have earned him.

13.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, states bars to reenlistment for Soldiers identified by the selection boards and approved by the Deputy Chief of Staff for Personnel (DCSPER) will be imposed as directed by the CG, MILPERCEN.  The effective date is the date the bar to reenlistment letter is mailed from the U.S. Army Enlisted Records and Evaluation Center (USAEREC).  Reenlistments after the date of the bar letter are erroneous; similarly, promotions are void.  Additionally, Soldiers who believe that they cannot overcome the bar to reenlistment will be allowed to request immediate separation.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 7, paragraph 17, states that fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.

15.  Additionally, the same regulation states that any member who has completed 18 or more years of active Federal service will not be discharged without approval of HQDA, except when discharge is under chapter 3 (section IV) or chapter 10.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues that he was wrongly accused of fraudulent entry.  However, the evidence of record shows that a DA imposed bar to reenlistment was placed on the applicant on 17 April 1982.  On 17 June 1982, the applicant signed the DA Form 4941-R indicating he had been counseled and understood the options open to him as a result of the DA bar to reenlistment.  On 18 June 1985, the applicant fraudulently extended his enlistment for the purpose of retirement.

2.  On 22 January 1986, the applicant and his counsel appeared before an administrative separation board.  The board reviewed the evidence, interviewed witnesses, conducted an examination of the applicant, and unanimously determined the applicant was undesirable for further retention in the military service because of fraudulent entry.  HQDA approved the request to discharge the applicant under the provisions of Army Regulation 635-200, chapter 7, with the issuance of a General Discharge Certificate.

3.  Evidence of record confirms all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process. There is no evidence and the applicant has not provided any to show that his discharge for fraudulent entry was rendered in error or was unjust.

4.  The applicant argues that he was discharged after 21 years of service without a retirement.  The applicant's record shows he had received nine Article 15's and four substandard evaluations at the time the DA bar to reenlistment was imposed.  Normally, Soldiers who incur as many disciplinary infractions as those received by the applicant would have been discharged several years earlier under Army Regulation 635-200, chapter 14, patterns of misconduct.  Additionally, the applicant could have requested early separation prior to his ETS once HQDA imposed the bar to reenlistment.  The applicant extended his service knowing he could not lawfully acquire eligibility for retirement.  The applicant's 
21 years of service, a portion of which was fraudulently obtained, is not sufficient justification to automatically qualify him for an honorable 20-year retirement.

5.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x__  ___x_____  _____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090019819



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ABCMR Record of Proceedings (cont)                                         AR20090019819



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